CASA EX04/13 - Exemption - recency requirements for night flying for Embraer 120 aircraft (Network Aviation Pty Ltd)

Administered by Department of Infrastructure, Transport, Regional Development, Communications, Sport and the Arts

Legislation au F2013L00069 Not in force Legislative Instrument

Legislation content

Explanatory Statement

Civil Aviation Regulations 1988

Exemption — recency requirements for night flying for Embraer 120 aircraft (Network Aviation Pty Ltd)

 

Legislation

Section 98 of the Civil Aviation Act 1988 (the Act) empowers the Governor-General to make regulations.

 

Subregulation 5.109 (1) of Civil Aviation Regulations 1988 (CAR 1988) provides that a commercial (aeroplane) pilot (the holder of a commercial aeroplane pilot licence) must not fly an aeroplane carrying another person unless the pilot satisfies the requirements set out in the subregulation. Subregulation 5.170 (1) provides that an air transport (aeroplane) pilot (the holder of an air transport aeroplane pilot licence) must not fly an aeroplane carrying another person unless the pilot satisfies the requirements set out in the subregulation.

 

Paragraphs 5.109 (1) (b) and 5.170 (1) (b) of CAR 1988 both mention certain requirements (recency requirements) that the pilot must have satisfied in the immediately preceding period of 90 days, being requirements relating to take-offs and landings at night. These requirements are that the pilot has, within the period, carried out at least 3 take-offs and 3 landings at night, while flying the aeroplane as pilot in command, or as pilot acting in command under supervision or in dual flying; alternatively, in that period the pilot must have satisfactorily completed an aeroplane proficiency check that was completed at night or passed a flight test that was conducted at night for the issue, or renewal, of an aeroplane pilot rating or (for 5.109 (1) (b) only) for the issue of an aeroplane pilot licence.

 

Subregulation 11.160 (1) of the Civil Aviation Safety Regulations 1998 (CASR 1998) provides that, for subsection 98 (5A) of the Act, CASA may grant an exemption from a provision of the regulations, including CAR 1988, or a provision of the Civil Aviation Orders (the CAOs), in relation to a matter mentioned in that subsection. Under subregulation 11.160 (2), an exemption may be granted to a person, or to a class of persons, and may specify the class by reference to membership of a specified body or any other characteristic.

 

Under subregulation 11.205 (1) of CASR 1998, CASA may impose conditions on an exemption if this is necessary in the interests of the safety of air navigation. Under regulation 11.225 of CASR 1998, an exemption must be published on the Internet. Under subregulation 11.230 (1), an exemption ceases on the day specified within it (but no longer than 3 years after its commencement) or, if no day is specified, 3 years after commencement.

 

The exemption revokes and replaces a previous exemption (CASA EX34/11) and allows Network Aviation Pty Ltd (the operator) to use an approved flight simulator to satisfy recency requirements instead of relying on flights in an Embraer 120 aeroplane. It differs from paragraphs 5.109 (1) (b) and 5.170 (1) (b) of CAR 1988 in that it allows the recency requirement to be satisfied by 3 take-offs and 3 landings at night in the immediately preceding 90 days that has been carried out in an approved type simulator or an aircraft of the same type. Alternatively, it requires the pilot, in the immediately preceding 180 days, to have satisfactorily completed a proficiency check, related to carrying out night operations, in an approved type simulator.

 

The operator must have a current CASA approved training and checking organisation.

 

The exemption would allow the operator to rely on flight simulators to meet the recency requirements and would also allow the operator to rely on normal line flying and on its training and checking organisation, instead of requiring the pilot to undergo special flight tests as may be required by CASA. The tests and procedures in the training and checking organisation require approval by CASA.

 

Legislative Instruments Act

Under subparagraph 6 (d) (i) of the Legislative Instruments Act 2003 (the LIA), an instrument is a legislative instrument for section 5 of the LIA if it is declared to be a disallowable instrument under legislation in force before the commencement of the LIA. The instrument is, therefore, a legislative instrument and it is subject to tabling and disallowance in the Parliament under sections 38 and 42 of the LIA.

 

Compatibility with human rights and freedoms

A statement of compatibility with human rights is at attachment 1.

 

Consultation

Consultation within the aviation industry as a whole has not taken place. Any operator whose procedures and training and checking organisation is considered by CASA to make satisfactory provision for testing and training pilots for night flying operations would be granted an equivalent exemption.

 

The exemption commences on the day after it is registered and stops having effect at the end of February 2016.

 

The exemption has been made by a delegate of CASA relying on the power of delegation under subregulation 11.260 (1) of CASR 1998.

 

[Instrument number CASA EX04/13]

Attachment 1

Statement of Compatibility with Human Rights

Prepared in accordance with Part 3 of the Human Rights (Parliamentary Scrutiny) Act 2011

 

Exemption under regulation 11.160 –from recency requirements for night flying

This Legislative Instrument is compatible with the human rights and freedoms recognised or declared in the international instruments listed in section 3 of the Human Rights (Parliamentary Scrutiny) Act 2011.

 

Overview of the Legislative Instrument

The legislative instrument permits the use of alternative means of satisfying recency requirements for night flying. The exemption is subject to conditions directed by CASA in the interest of safety.

The primary purpose of the legislative instrument is to allow pilots in command flying for the named operator to update their night recency requirements by using flight simulators. It allows the operator to rely on normal line flying and its training and checking organisation for that purpose, instead of requiring the pilot to undergo special flight tests as would otherwise be required under the Regulations.

Human rights implications

This legislative instrument does not engage any of the applicable rights or freedoms.

Conclusion

This legislative instrument is compatible with human rights as it does not raise any human rights issues.

Civil Aviation Safety Authority

Overview

The Civil Aviation Regulations 1988, enacted under the authority of the Civil Aviation Act 1988, serve to regulate various aspects of civil aviation safety in Australia. One significant issue addressed by these regulations is the recency requirements for pilots, particularly concerning night flying operations. To address this, the Civil Aviation Safety Authority (CASA) introduced a specific exemption for Network Aviation Pty Ltd to utilise flight simulators to satisfy night flying recency requirements, rather than requiring pilots to conduct actual night flights. This exemption, detailed in CASA EX04/13, replaces a previous exemption (CASA EX34/11) and aims to provide a safer and more efficient means for pilots to maintain their night flying currency. The exemption allows the operator to meet the necessary recency requirements through simulator training, ensuring that pilots are adequately prepared for night operations without the need for additional special flight tests mandated by CASA. This legislative measure facilitates operational efficiency while maintaining high safety standards in the aviation sector.

Scope and Application

The exemption provided under the Civil Aviation Regulations 1988 pertains specifically to the requirements for pilots to maintain recency in night flying operations for Embraer 120 aircraft operated by Network Aviation Pty Ltd. This exemption applies to the holders of commercial aeroplane pilot licences and air transport aeroplane pilot licences who fly under the specified conditions. The exemption allows these pilots to satisfy their recency requirements through the use of an approved flight simulator or by completing a proficiency check related to night operations in a simulator, instead of conducting the required take-offs and landings at night in an actual Embraer 120 aircraft. The exemption is granted by the Civil Aviation Safety Authority (CASA) under subregulation 11.160 of the Civil Aviation Safety Regulations 1998, and it is subject to conditions that ensure the safety of air navigation. CASA can impose conditions on the exemption, and the exemption must be published on the Internet and ceases no later than three years after its commencement. This exemption is limited to Network Aviation Pty Ltd, provided the operator has a current CASA-approved training and checking organisation. The exemption does not extend to other operators or aircraft types unless CASA considers their procedures and training and checking organisations to be satisfactory for testing and training pilots for night flying operations. The exemption is subject to tabling and disallowance in the Parliament under the Legislative Instruments Act 2003, and it is compatible with human rights as it does not engage any applicable rights or freedoms. The exemption is effective from the day after its registration and ceases at the end of February 2016.

Key Provisions

The Civil Aviation Regulations 1988 (CAR 1988) establish key requirements for commercial aeroplane pilots (section 5.109(1)) and air transport aeroplane pilots (section 5.170(1)). These pilots must meet certain recency requirements for night flying, specifically having performed at least three take-offs and three landings at night within the last 90 days, or having completed a proficiency check or flight test at night. This regulation ensures that pilots maintain their proficiency and safety standards when flying at night. The obligations imposed by the Civil Aviation Safety Regulations 1998 (CASR 1998) allow the Civil Aviation Safety Authority (CASA) to grant exemptions from these recency requirements under certain conditions. For example, CASA can grant an exemption if it deems it necessary for safety reasons (section 11.160(2)), and can impose conditions to ensure that the exemption does not compromise safety (section 11.205(1)). Additionally, any granted exemption must be published on the Internet (section 11.225) and typically ceases within three years (section 11.230(1)). Breaching the conditions set out in CAR 1988 could result in penalties for the pilots and the operators, including potential fines and suspension of their licenses. Under section 11.205 of CASR 1998, CASA may impose conditions on an exemption if necessary in the interests of the safety of air navigation, and non-compliance with these conditions can lead to civil or criminal consequences. The specific penalties for breaching the conditions are not explicitly stated in the text but generally could include fines or imprisonment depending on the severity of the breach.

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Sourced from the Federal Register of Legislation at 26 August 2026. For the latest information on Australian Government law please go to https://www.legislation.gov.au.